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Burden of Proof

A Life in Limbo: Should Robert Wendland be Allowed to Die?

Aired January 15, 2001 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

JUDGE BOB W. MCNATT: It would be terribly ironic if California were to require a written instrument to dispose of mere property, and yet to allow someone to dispose of their very lives with a few poorly chosen words.

ROSE WENDLAND, WIFE OF ROBERT WENDLAND: What he said, if I could not be a father, a husband or a provider, then why even exist?

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN, a life -- OF PROOF -- a life in limbo. A California man's family is embroiled in a controversial court battle. At issue is whether Robert Wendland should be allowed to die.

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

A landmark case is heading for the California Supreme Court. Seven years ago, Robert Wendland rolled his pickup truck and was left paralyzed and in a coma. Sixteen months later, he became minimally conscious. Now Robert Wendland's wife Rose wants his feeding tube removed. Wendland's mother opposes this and has asked the court for the right to care for him. Florence Wendland says her son still experiences moods and responds to simple commands. Rose, Robert's wife, says that the husband she knew died seven years ago.

Joining us now from Sacramento is Robert's mother, Florence Wendland, and her attorney Janie Siess. Joining us from San Francisco, Lawrence Nelson, attorney for Robert's wife, Rose. And Rose will be joining us by phone. In Minneapolis, neurologist and bioethicist Ronald Cranford. And here in Washington, Steve Burch, attorney and bioethicist; Gregg Bloche and Leslie Turner (ph). In the back row, Chris Kenny (ph) and Hadiza Buje (ph).

I want to go right to Florence.

Florence, you are fighting to stop your son from having his feeding tube removed. And yet doctors say that he is in a coma and does not respond and is practically -- and is, for all intents and purposes, dead but for that tube. Why are you fighting to keep the tube from being removed?

FLORENCE WENDLAND, ROBERT WENDLAND'S MOTHER: Because he is not in a coma. He's not in a coma. He does things. He paints, he holds my -- he kisses my hand. I'll say, Robert, let me hold your hand, and he'll hold my hand. I'll say, kiss my hand, and he'll kiss my hand. I'll say, can I kiss your hand? He'll let me kiss his hand. He -- I bought a game, he plays that. Nurses have seen him do it. He paints, he bowls, now he's learning to play golf. They have a multipurpose room where they have several people like him and they all seem to be enjoying themselves.

COSSACK: Florence...

F. WENDLAND: So I don't see why he should be put to death.

COSSACK: Florence, therapists say that, in fact, the things that you've describe aren't really the things that he does, but are just reactions because of the state that he's in. And they say that these are things that therapists taught him how to do, that he really doesn't respond.

F. WENDLAND: No, you have to be with him for a while. You have to be around him. Those that say that, they just -- they're just in there with him maybe for a few minutes. You have to be around him for a few hours to understand him, for him to understand you. And he does understand. When I talk to him, he understand me. He looks at me. When I read to him, he looks at me. He turns his head this way or he'll turn it that way and he'll just look. He knows what I'm saying. And...

COSSACK: Does he respond to you verbally in any way, Florence?

F. WENDLAND: No, not verbally. No, that's one thing. That's his problem. He can't talk.

COSSACK: But he...

F. WENDLAND: If he could talk, things would be a lot different.

COSSACK: Can he move his head to you?

F. WENDLAND: Yes. He takes -- they'll put -- I'll put a -- give -- put a cap on his head. He'll take it off and he'll put it on the way he wants it.

COSSACK: All right, let's go now to his wife.

Rose, I'd like to hear your response on this. You are asking, of course, for the feeding tube to be removed. You have said that your husband initially didn't -- you said your husband told you that he didn't want to live like this. Tell us about that.

ROSE WENDLAND, ROBERT WENDLAND'S WIFE: Well, three months prior to Rob's accident, my father was in a vegetative state, coma, and we had decided to remove his feeding tube. At that same time, Rob had said to myself and the children, and went as far as even saying something to his brother, he thought the people that were most important in his life, and he wanted to let us know that, basically, if he was ever in a state like that, that he wouldn't want to be.

My problem was, when he had his accident and they said he was in a coma, like most people I thought, OK, you're in a coma, you're going to wake up one day and, you know, just go through some therapy and be OK. But I realized after 16 months that that's not the case, Robert's actually brain dead. He's got severe atrophy. He does move his left side. And as far as him able to do what Florence says, that's impossible. You've seen the videos. And we were there for three years solid trying to get some type of response to him. He doesn't respond to his children or myself. Actually, Florence and him had been distant for 10 years prior to this. So if he was going to respond to her, he would respond to us first. And he's never done that.

COSSACK: Rose, people say, at least, there is some indication that he does respond in some way, at least to his mother. Maybe perhaps there's a difference in terms of degree, but he does respond in some way and he is not in a coma. In light of that, is this still the thing to do, to remove his feeding tube and, in effect, take away his life?

R. WENDLAND: Well, to be honest with you, Robert did die seven years ago. We're keeping him alive artificial. It was Robert's choice not to be in any type of life-support. He mentioned it, like I said, to myself and his children and his brother. So in a sense, we are keeping him alive. Robert is not keeping himself alive by no means. And that, like I said, he had mentioned to us if he could not be a husband, a father or a provider, what's the purpose of all this? And that was his choice. We're just trying to honor his wishes.

And after several years, we have decided enough was going to be enough. In fact, his feeding tube had been taken out a fourth time and we were going to have to replace the feeding tube back in for the fifth time. That was -- at that time, we had decided, myself and the children, have decided not to put the feeding tube back in. And this is how this all started.

COSSACK: Rose, Florence has indicated that she would -- you know, Robert's mother has indicated that she would take care of her son and that she would do -- she would come to the hospital every day and take care of him, and has suggested, horrible as this may be to you, that perhaps the answer is a divorce rather than the ending of his life. How do you respond to that?

R. WENDLAND: Well, first of all, you know, that may be her answer to everything, is just divorce. And you think that that would change anything, it does not change anything. The fact is that my children can't divorce him and, you know, my children are the ones who are suffering through this. If they know their father's been gone for seven years and they need a rest, a final on this, and so does Rob. That was in his wish. And as far as divorcing, I'm -- you know, I'm just really tired of hearing that. It's not even a question, you know, is divorcing, or I'm tired of this. It has nothing to do with me personally, it has everything to do with Rob and what he asked and how we're going to honor his wishes. And, you know, that's how I feel.

COSSACK: OK, all right, let me interrupt for just a second. Let's take a break.

Family members aren't the only ones disagreeing about Robert Wendland's fate. Coming up, the controversy among doctors, ethicists and lawyers. Stay with us.

(BEGIN LEGAL BRIEF)

Closing arguments in the murder trial of pro football player Rae Carruth were to begin Monday. They were delayed last week when the prosecutor became ill. Carruth faces the death penalty if convicted of the first-degree murder of Cherica Adams.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: We are back. Robert Wendland's life is now in the hands of the court. Is the law really the right area for which to decide this issue?

Let's first talk to Florence's attorney Janie Siess.

Janie, thanks for joining us. Where are we in the legal proceedings here?

JANIE SIESS, FLORENCE WENDLAND'S ATTORNEY: Right now, the case is pending before the California Supreme Court, and we are just waiting to hear a date when we are going to go in and orally argue about the matter.

COSSACK: Well, let's talk about how it got to the California Supreme Court. Initially, Robert's wife went to the, I guess, the trial court and asked for an order, in which the hospital would be allowed to remove the feeding tube, and was denied that. Wasn't that right?

SIESS: Actually what happened is that Rose had gone to the Ethics Committee at Lodai (ph) Memorial, and had obtained their blessing remove Robert's feeding tube. The discharge orders were written, and the plans were made without consulting my clients. When my clients learned what was going on, we obtained a restraining order from the court and, at that point, Rose petitioned to become Robert's conservator. And then we were off to the races, if you will, and we have been through a full-blown trial, and we have been through one appellate decision here in Sacramento, the Third District.

COSSACK: That is what I want to talk to you about because I think there's obviously two conflicting opinions, if the lower court said that Rose, Robert's wife, should not remove the tube; isn't that correct? SIESS: That's correct.

COSSACK: And the court of appeals had reversed that order, and the issue seems to be -- I think this is one of the -- what this is all about in this case -- it is about a very narrow issue of law, and if there's anything this case isn't about, it is a very narrow issue of law. What was the difference between the two decisions?

SIESS: Judge McNatt, in the lower court, said that Rose had not established her burden of proof, if you will, by clear and convincing evidence that it was appropriate and in Robert's best interest, based in part upon statements that he had made prior to his injury, to have his feeding tube removed.

The Third District Court of Appeal upheld his decision to the extent that he said Rose bore the burden of proof, and they also upheld the fact that she must prove her case by clear and convincing evidence. They then told us to go back to the trial court and continue the trial where we left off, which was basically going to be with my opening argument and my calling witnesses, in order to establish whether or not she had shown by good faith that she had made this decision in reliance upon medical advice.

COSSACK: All right, Larry Nelson, joining us now.

Larry, what is the issue before the California Supreme Court?

LAWRENCE NELSON, ROSE WENDLAND'S ATTORNEY: Well, the basic issue is whether a California statute, that gives Rose Wendland the authority to make this exact kind of decision, is constitutional. Miss Siess has also argued about whether it is good policy, which of course is not the court's business to decide.

The California Legislature enacted this statute, and as I just mentioned, it expressly permits conservators to refuse medically- provided nutrition and hydration.

COSSACK: Janie, you are arguing good policy, what effect are you arguing in terms of policy in this case?

SIESS: I disagree with that characterization, I'm arguing that we have a constitutional issue here, with regard to the statute, and the fact that it would allow a conservator in California to make a decision based all the way up to the point of bringing about their conservee's death simply on the good faith of that conservator.

So what you would have is conservators in California on trial, on a very subjective basis, if other family members, for instance, my clients, disagree with that proposed course of action.

There is also an equal protection argument here.

COSSACK: Larry Nelson, that argument would seem to put the emphasis on what the conservator believes rather than on what is best for the patient in this case. Is that the law as it should be? NELSON: No, it is not the law, Ms. Siess has mischaracterized it. The new statute, Probate Code 2355, requires conservators, first of all, to follow the instructions, directions, or wishes of the patients, as expressed prior to the time that they became incompetent. So it is not just about the conservator. It is about the conservator, by the way, who is court appointment, not just someone who is coming in out of nowhere, or is just one of the family members who is the loudest.

This is someone who has passed judicial scrutiny, as being the best person to make the decision.

So they, first of all, have to follow the patient's wishes. Second of all, they must make the decision in good faith. It has to be based on medical advice. And our position is, it can't be a completely unreasonable decision, and it is subject to judicial review on those grounds.

COSSACK: All right. Joining us now is Dr. Ronald Cranford.

Dr. Cranford, you are a neurologist, and you had the ability actually to look at Robert. Your opinion on this matter is that the feeding tube should be removed; is that correct?

DR. RONALD CRANFORD, NEUROLOGIST: Yes.

COSSACK: Why is that?

CRANFORD: Well, first of all, he's not in a coma, he's not vegetative, he is not unconscious, he is what we call minimally conscious. He does have some definite, but minimal, interaction with the environment. In that situation, he is so severely brain damaged that I think the one that is the most caring and most interested, which seems to be the wife and the children, should be allowed to make that decision.

So I think this is a common issue that goes on all the time in America today, where families are allowed to make these decision. I think the wife and the family should be allowed to make these decisions.

COSSACK: Dr. Cranford, aren't you susceptible to criticism for the value judgment you just made, which is that the one who seems to be most caring would be his wife and his children? I mean, couldn't you argue, in fact, that his mother, who has said, I will take care of him, don't put kill him, I will take care of him, couldn't you argue the other side of that issue for her?

CRANFORD: Yes, you could. Any time you have families disagreeing, mothers versus wives, it is a very difficult decision, you have to decide who knows him the best, who has been involved with him the best, and that's a decision I don't think this court at the lower court was willing to make, but this is a real common problem, too, you have to decides who knows the patient best, who has been with him the most, who knows what his wishes are, and make the value decision on that. And sometimes, when you have family disagreeing, especially mothers, because mothers are unique, and wives, then you have a major conflict, yes.

COSSACK: Go ahead.

DR. GREGG BLOCHE, BIOETHICIST: This, I think, points to one of the main failings in this case earlier on, that the health care institutions involved didn't pull the families together, and didn't try to work this out, to work out the family conflicts to negotiate this. It is a striking feature of this record that the family members who intervened legally to stop the pulling -- the -- stop the non- reinsertion of the tube got an anonymous tip from the hospital. This was quite irregular, you just didn't have the health care providers pulling the families together to discuss what was going on.

COSSACK: All right. Let's take a break. You know, sometimes there are many choices, but there's no answer. This may be one of those times. Stay with us.

(COMMERCIAL BREAK)

COSSACK: We are back and we are talking about the tragic case of Robert Wendland, who is a semi-coma, and there is dispute between his mother and wife over whether or not his feeding tube should be removed, and Robert Wendland be allowed to die.

Dr. Cranford, I want to ask you this, how would you respond to this criticism, that what this really represents, since Mr. Wendland really isn't in a complete coma, that the notion of pulling his feeding tube really represents a step by society of going in a direction where this kind of action, that is the death of a patient, is a form of treatment for economic and insurance reasons? And where do you stop between somebody who has Alzheimer's or someone who has dementia, who perhaps would be in the same kind of situation that Mr. Wendland would be in?

CRANFORD: That is a legitimate questions because, prior to this. all the cases have been vegetative states. This is one of the first few cases of minimally conscious, or profoundly demented. So one of the legitimate questions in these case, where do you draw the line? There are thousands and thousands of patients with Alzheimer's who may be in the same condition. Where do you draw the line? And there is no line. There was line with vegetative, but there is no line here.

On the other hand, I think that 90 percent of Americans would find a condition like Robert Wendland, where he may be aware to some degree, only minimally aware, absolutely horrifying and worse than being vegetative. On the one hand, you have what most of us would think; on the other hand, you have the genuine concerns of people about the slippery slope on where you draw the line, and that is why this case has such controversy because he's not vegetative, he is minimally conscious. Where do you draw the line on patients who are severely brain damage, where you want to stop treatment? Of course, one line to stop is if they are in a feeding tube, that means they are medically dependent; if you stop the feeding tube, he dies. That's one line to be drawn right there.

COSSACK: But if someone was on a respirator, you could say the same thing, he would be fully conscious, and you wouldn't say we were going to pull the respirator and say that that is the only way that that keeps that person alive would be with a respirator.

CRANFORD: Sure, but you can't combine both, combine the neurological condition and the treatment. If they are in a treatment, if they want to stop the respirator, we stop the respirator in a patient that are fully conscious. But the fact that he is profoundly brain damaged, but not quite vegetative, combined with the fact that he is feeding-tube dependent, you have to combine three factors, you have to combine the condition of the patient, the fact of treatment, and the family which is in controversy here. All those go into the equation, and that's why all those factors are essential.

COSSACK: Gregg, I would like your response to the issue of whether or not this is a slippery slope, and talking about patients with dementia or perhaps Alzheimer's in this sort of what we call non- vegetative, but almost vegetative state.

BLOCHE: Exactly this phenomena was predicted in a leading article by constitutional law scholar Stephen Goldberg some years back. He predicted that we would go from the PBS stage to progressive levels of increased, albeit minimal consciousness, particularly as we experience the press of resources being spent to keep people alive in this state.

And I think that the court needs to think, not only about what is right for Robert, it may well be that not to reinsert the tube is right for Robert. The court needs to think about what is going to happen as a result of its ruling, for a whole lot of other people who don't have the kind of family involvement that Robert has, and whose health care providers are paid in a way that gives them financial incentives to limit treatment.

COSSACK: Right. Is this the kind of thing that the court will think about? And, in fact, are courts set up to think about this? I mean, isn't that really the issue in this case? That we have this incredible social issue of what we do with people who reach this particular state being decided by a forum that really doesn't take that into consideration.

BLOCHE: Roger, you are absolutely right about that. The worry here is that the powerful emotion involved in this case will distract the court from looking at the wider social implications of its ruling. But it is the job of state supreme courts to consider, not just the case before them, but the law social impact as well. Even if this means, to some extent, disregarding the trauma and the tragedy that Robert's family are experiencing.

COSSACK: All right, let me go right back to the lawyers. Larry Nelson, should the court take what Gregg said into consideration, the social impact, or just limit its discussion to what your client is about?

NELSON: The court should stay away from that because the legislature has made the choice, the democratically-elected representatives of the state of California have said that this is the best way to go, this is the best way to make these difficult decisions. There are lots of protections built into the law.

COSSACK: Let me just go to Janie. Janie, what should the court decide? Should they take anything other than Robert Wendland's condition into consideration in making their decision?

SIESS: They should look at the statute itself, which is unconstitutional, and strike it down.

And I do need to make another point here. You know, they are describing Robert as minimally conscious. What the public needs to know is that there really is no such thing. That is a term that was made up by Dr. Cranford and some of his colleagues in order to move the line over where you can start killing people like Robert.

COSSACK: Janie, I'm afraid that's all the time we have today. Thanks to our guests, and thank you for watching.

Tune in to "TALKBACK LIVE" for a discussion on manners in public schools. Can public schools force students to address their teachers as sir and ma'am? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

Greta and I will be back tomorrow with another edition of BURDEN OF PROOF. We will see you then. Bye-bye.

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